On May 12, 2006, defendant drove to
an apartment complex in Portland with three passengers in his vehicle. One of
the passengers was defendant's codefendant at trial, Navarrete-Pech
(codefendant). The other two passengers were never arrested, and are referred
to by their nicknames, "Yucca" and "Chacua."(3)
Chacua left the vehicle when it arrived and was not involved in the assaults or
attempted murder. Yucca left the vehicle shortly after Chacua did and began
speaking with three individuals--the victim, Jaime, and Kiler--who were sitting
on the apartment stairs, drinking beer. Yucca talked to them about a past
fight, but they responded that they did not know what he was talking about.
Yucca told either Kiler or the victim that he looked like a man who had hit him
in the head with a bottle during the previous fight. Yucca then returned to
the vehicle, where defendant and codefendant were waiting. Shortly thereafter,
Yucca, defendant, and codefendant returned to the apartments and approached the
victim, Jaime, and Kiler. Yucca asked for a beer and, simultaneously, punched
the victim in the face.

Jaime responded by punching Yucca and
shoving him. After being shoved, Yucca was located about 10 feet away from the
victim and Jaime, who were standing close to each other. Yucca pulled out a
pistol and pointed it at the victim and Jaime. Jaime threw his beer bottle at
Yucca and taunted him. Yucca then stated to the victim, "Mother fucker, I
told you I'd whoop your ass." At that point, according to the victim, either
defendant or codefendant tried to "get involved" but was prevented from
doing so by the victim's friends, who had come out of one of the apartments
after the altercation began.(4)

Jaime continued to argue with Yucca,
while the victim began moving toward the doorway of the apartment. Codefendant
then told Yucca, "[J]ust kill him and let's go" or "[S]hoot
him." Yucca fired in the direction of the victim and Jaime, and a bullet
struck the victim in the arm. After the shooting, defendant and codefendant ran
to defendant's vehicle. Shortly thereafter, Yucca arrived at the vehicle.
Defendant drove away with Yucca and codefendant.

Both defendant and codefendant were
subsequently arrested, and the pistol used in the shooting was found in
defendant's car at the time of his arrest. Defendant and codefendant were
interviewed by Detectives Halpin and Hergert of the Portland Police Bureau,
respectively. Defendant admitted that the pistol was his. He told Halpin that
he had given it to Yucca earlier in the day because Yucca "wanted it"
and he thought Yucca "could handle it." Defendant also told Halpin
that they had gone to the apartment complex because Chacua wanted to get some
cocaine there and that defendant was "standing right there" at the
time of the shooting.

Codefendant acknowledged to Hergert
that, while Chacua had gone to the apartments to get drugs, Yucca, defendant,
and he went there to fight some men with whom Yucca had previously fought. Codefendant
also described Yucca's initial departure from the vehicle and Yucca's return to
the vehicle where he and defendant were waiting. Codefendant stated that, when
Yucca returned, Yucca told them that he had found the person at the apartment
complex whom he was looking for (the man whom he had fought with previously and
who had broken a bottle over his head) and told them, "[L]et's go fight
[the men on the stairs.]" Codefendant said that they agreed and followed
him back to the apartments. Codefendant told Hergert that both he and
defendant knew that Yucca had brought the pistol to the apartments, because
Yucca had shown it to them in defendant's vehicle as they drove to the
apartment complex.

Defendant and codefendant were
charged with attempted murder, second-degree assault, and third-degree assault
on the theory that they aided and abetted Yucca's crimes. Yucca was not
arrested or charged. Hergert and Halpin testified at trial, and their
testimony included statements made by both defendant and codefendant, neither
of whom testified. Defendant and codefendant objected to the introduction of
each others' statements as a violation of their federal confrontation right. The
court allowed the testimony, but ordered that statements by codefendant that
specifically referred to defendant be redacted and, similarly, that any
statements by defendant that specifically referred to codefendant be redacted.
Both defendant and codefendant repeatedly objected to the redaction, arguing
that redaction would not be effective. The court concluded that the redacted
statements would not violate defendant's or codefendant's right to confront
adverse witnesses and overruled their objections. The pertinent portions of
codefendant's statements to Hergert, as redacted, are as follows:

"[Codefendant] said that he was at his
house, and that there were three other guys there with him[.] * * * [A]ll four
of them left his location, four guys, in a green vehicle[.]

"* * * * *

"[Codefendant] said they were heading over
there to the apartments because they had some problems with guys in the
apartments, that the four of them left his house earlier that day, and that
they were going to go over there and fight these guys, but that, again, Chacua
* * * was not going to get involved in the fight[.]

"* * *[Codefendant said that Yucca] shows
them a gun that he has on the way over [to the apartment complex.] * * *
[T]hey all see this.

"[Codefendant said that] when they get
there * * * [Yucca] goes to the apartment complex, and that he comes back and
tells them those guys are there, and that, says, you know, 'Let's go get them,'
and so they agree to go fight and what they're going to do, he says, is going
to fight, throw punches, and throw bottles.

"And, again, it's going to be three of the
four, all of them but Chacua, because Chacua knows both sides."

"* * * * *

"[Codefendant said] next [Yucca] fires the
gun one time, and that several of them run back to the vehicle--to the vehicle
they arrived in, but that, again, Chacua, the one person who was not going to
get involved, stays behind. Does not leave with them.

"[When asked why codefendant and the
several other people were going there to the fight, codefendant said the
victim] was bragging about beating up [Yucca] the other day, that they had an
altercation a few weeks prior, that this guy was bragging about it.

"* * * * *

"[When asked whether he agreed to Yucca's
request that they go fight the men on the stairs, codefendant said,] 'Several
of them do. Yes.'"

The pertinent portions of defendant's statements to Halpin,
as redacted, are as follows:

"[When asked who accompanied him to the
apartment complex, defendant answered] that he and three others went there
because one of the other individuals wanted to get some more coke, and one of
them said that they could get it.

"[When asked what happened next, defendant]
said that a person named Chacua had left the vehicle to get some coke, and that
the other three of them waited in the car, and they waited there for about a
half an hour[.] * * * Yucca[] got tired of waiting, and so he left, and he went
to look for Chacua, and then Yucca came back to the car, and he was commenting
that he had just seen an individual that he had had a problem with in the past.

"* * * [Defendant] at first told us that he
waited in the car, and that the others went. * * * [T]hen he admitted that,
no, he had gone with them and there was a fight and a shooting, and he said he
was standing right there at the time of the shooting.

"[Defendant] said that they'd gone over to
this guy that Yucca had had the problem with, and that Yucca had punched this
guy, and another guy present, named Jaime, started fighting with Yucca, and hit
Yucca with a bottle, and then Yucca pulled a gun out of his pocket and he shot
the person that he originally had a problem with."

"* * * * *

"[When asked if defendant admitted that he
and several other people went over to the victim, defendant said,] 'Yeah.' He
said, 'yeah,' he said, 'We went over to [the victim.]'

"* * * * *

"[When asked what happened after the
shooting, defendant answered] '[w]e took off, except Yucca stayed behind[.]' *
* * They ran to his car to leave, but one of the guys was saying to wait for
Yucca, and so they waited 10 or 15 seconds, and Yucca came, and then they took
off, and he said at that point there were three of them in the car because
Chacua was still behind."

At the close of the state's evidence,
both defendant and codefendant moved for judgments of acquittal on all charges,
arguing that the evidence introduced--which, in their view, proved only that
they were present at the scene of crimes committed by Yucca--was insufficient
to support their convictions as accomplices. The court denied their motions,
and the jury convicted defendant and codefendant of attempted murder,
second-degree assault, and third-degree assault.

In defendant's first three
assignments of error, he asserts that the trial court erred in denying his MJOA
on the attempted murder, second-degree assault, and third-degree assault charges,
respectively. He makes one argument that is common to all three assignments,
and two distinct arguments that apply only to the third-degree assault. The
argument common to all three is that the state failed to prove that defendant
had the requisite intent or that he engaged in any conduct that assisted Yucca.

With respect to the third-degree
assault only, defendant first argues that, even if he engaged in conduct that
assisted Yucca, he could not be convicted of third-degree assault on an aiding
and abetting theory. Defendant notes that third-degree assault, as defined by
ORS 163.165(1)(e), requires that the assailant be "aided by another person
actually present * * *." He argues that the conduct of the aiding person
is "necessarily incidental" to the crime and thus does not give rise
to liability for aiding and abetting. See ORS 161.165(2) (a person is
not criminally liable for conduct of another constituting a crime if the
"crime is so defined that the conduct of the person is necessarily incidental
thereto").

Defendant also argues that, if he in
fact aided and abetted Yucca, he is criminally liable only for Yucca's conduct,
not the circumstances surrounding that conduct. Specifically, defendant
contends that he is not criminally liable for the fact that Yucca was aided by
another person actually present. Thus, he contends, he is liable, at most,
only for fourth-degree assault.

Neither of the latter two arguments
are preserved. Defendant argued at trial that ORS 163.165(1)(e) requires two
or more active participants in an assault in order for it to constitute
third-degree assault. Because Yucca was the sole active assailant in this
case, defendant contended, no third-degree assault occurred and, consequently,
defendant could not be liable for aiding and abetting a third-degree assault.
Defendant did not argue, as he does on appeal, that any aiding conduct he
engaged in was necessarily incidental to the crime. Nor did he argue that he
could be held liable only for Yucca's conduct and not the fact that Yucca was
aided by another person. Because defendant failed to raise those arguments at
trial, they are unpreserved, and we do not consider them.(5)See State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000) ("[A] party
must provide the trial court with an explanation of his or her objection that
is specific enough to ensure that the court can identify its alleged error with
enough clarity to permit it to consider and correct the error immediately, if
correction is warranted.").

We turn to defendant's preserved sufficiency
of the evidence argument. As we summarized in State v. Groves, 221 Or
App 371, 378, 190 P3d 390, rev den, 345 Or 415 (2008):

"We review the denial of a motion for
judgment of acquittal to determine whether there is evidence in the record from
which a rational factfinder, viewing the evidence in the light most favorable
to the state and drawing all reasonable inferences in the state's favor, could
find the defendant guilty. Although a factfinder may draw reasonable
inferences from direct and circumstantial evidence, it may not engage in
speculation or guesswork. We review all of the evidence admitted at trial,
whether properly admitted or not, so our disposition of defendant's [contention
that some evidence was improperly admitted at trial] does not affect our review
here."

We conclude that there is ample
evidence that defendant served as an accomplice and actively assisted Yucca in
committing these crimes. Defendant's statements, according to Halpin's
testimony, establish that defendant went with Yucca to confront the victims, stayed
with him during the confrontation, and waited for him in the vehicle
afterwards. The testimony of the victim and Gongora, a resident of the
apartment complex, corroborates that defendant accompanied Yucca and
establishes that either codefendant or defendant tried to "get
involved." Codefendant's statements, as related by Hergert in his
testimony, demonstrate that (1) Yucca and defendant went to the apartments to
fight someone as retaliation for an earlier altercation; (2) Yucca showed them
the pistol while driving to the apartments; (3) Yucca returned to the vehicle
and told them that he had found the man he was looking for; (4) Yucca asked
them to accompany him "to fight"; (5) they agreed to do so and
followed Yucca back to the apartments; and (6) defendant served as the getaway
driver for Yucca. Considered as a whole, that evidence is sufficient to
support a finding that defendant aided Yucca by providing backup during the
altercation and actingas the getaway driver.(6)
The evidence also supports the inference that defendant had the requisite
intent to aid Yucca. We conclude that the court did not err in denying defendant's
motions for judgment of acquittal.

In defendant's fourth assignment of
error, he argues that the trial court erred in admitting the redacted
statements of his codefendant, Navarrete-Pech. According to defendant, the
redaction of any explicit reference to him in codefendant's statements was ineffective
and, therefore, because codefendant did not testify, the admission of the
statements violated his right to confront adverse witnesses. The state
responds that the admission of the redacted statements did not violate
defendant's confrontation right because the "four corners" of the
redacted statements are not incriminating--that is, the redacted statements
were not themselves incriminating, because they implicated defendant only when
considered in light of other evidence introduced at trial. For the reasons
that follow, we conclude that their admission violated defendant's
confrontation right under the principles expressed in Crawford v. Washington,
541 US 36, 124 S Ct 1354, 158 L Ed 2d 177 (2004), and Bruton v. United States,
391 US 123, 88 S Ct 1620, 20 L Ed 2d 476 (1968).

Under the Sixth Amendment to the
United States Constitution, a criminal defendant has the right to confront
witnesses against him or her. In Bruton, the United States Supreme
Court held that admitting the confession of a nontestifying codefendant in a
joint trial violates a defendant's confrontation right if those statements
implicate the defendant, because the defendant is denied the opportunity to
cross-examine the codefendant. 391 US at 136-37. In Richardson v. Marsh,
481 US 200, 211, 107 S Ct 1702, 95 L Ed 2d 176 (1987), the Court established
that a defendant's confrontation right is not violated by the admission of a
nontestifying codefendant's confession where the statement is "redacted to
eliminate not only the defendant's name, but any reference to his or her
existence[.]" The Court affirmed the defendant's conviction in Richardson
after noting that the redacted confession was not incriminating to the
defendant until it was "linked with evidence introduced later at
trial." Id. at 208. In other words, the Sixth Amendment does not
prohibit the introduction of a codefendant's confession if the confession is
incriminating to the defendant only when viewed in the context of other
evidence.

In Gray v. Maryland, 523 US
185, 192, 118 S Ct 1151, 140 L Ed 2d 294 (1998), the Court held that the
admission of the redacted statements of a nontestifying codefendant that
contained an obvious indication of deletion--in that case, replacing the
defendant's name with the word "deleted"--violated the defendant's
confrontation right. The Court, in distinguishing the case from Richardson,
stated:

"The inferences at issue here involve statements that,
despite redaction, obviously refer directly to someone, often obviously the
defendant, and which involve inferences that a jury ordinarily could make
immediately, even were the confession the very first item introduced at
trial."

Gray, 523 US at 196.

In applying those cases in State
v. Johnson, 199 Or App 305, 312-13, 111 P3d 784, rev den, 339 Or
(2005), we concluded that the defendant's confrontation right was violated by
the admission of the redacted statements of a nontestifying codefendant. In Johnson,
the codefendant's confession repeatedly referred to the defendant specifically
and described his criminal conduct in detail. In the redacted version that was
admitted at trial, the defendant's name was replaced with the terms "the
other individual" and "the other person." Id. at 313. We
noted that the redacted version did not eliminate "'any reference to [the
defendant's] existence'" and "directly and frequently implicated
[the] defendant in the crime of felony murder." Id. at 312
(quoting Richardson, 481 US at 211). We further noted that, as
prohibited by Gray, the redacted statements contained obvious
indications of deletion because "[e]very individual in the confession is
named with one conspicuous exception, and the fact of that individual's
anonymity is reemphasized with every use of some antecedentless pronoun or
generic term." Id. at 313.

In this case, codefendant's
statements were redacted in a way that referred to defendant's existence and
described his criminal conduct in detail, see Richardson, 481 US at 211,
with actual names replaced with generic terms in phrases like "we
all" saw the pistol and "three of the four, all of them but
Chacua" agreed to go fight. Codefendant stated that "[s]everal"
of them agreed with Yucca's plan of fighting the men on the stairs.
Considering that codefendant stated that Chacua was not involved in the fight
and had gone along only to get drugs, that statement unquestionably implicated
defendant.

Moreover, like the ineffective
redaction in Johnson, every individual in codefendant's statements--with
the exception of defendant--was named. Codefendant's statements, as redacted,
make it clear that three men were with him when they arrived at the victim's
apartment complex: Chacua, who was not involved in the altercation; Yucca, the
one who actually fired the pistol; and another, conspicuously unidentified man
who provided backup for Yucca with codefendant. As defendant argues, it was
obvious from the redacted statement that defendant was that conspicuously
unidentified individual who, along with codefendant, aided Yucca in the
assaults and attempted murder. The redactions in this case have the
fundamental flaw identified in Johnson--the use of terms like
"others" and "they" combined with the use of proper names
or nicknames for every other individual alerts the jury to the fact that
someone's--defendant's--name has been deleted. See Johnson, 199 Or App
at 313. As the Court stated in Gray, "redaction that replaces a
defendant's name with an obvious indication of deletion * * * falls within Bruton's
protective rule." 523 US at 192. We conclude that the trial court erred
in admitting codefendant's redacted statements.

Having concluded that defendant's confrontation
right was violated, we further conclude that the error was not "harmless
beyond a reasonable doubt." See Delaware v. Van Arsdall, 475 US
673, 681, 106 S Ct 1431, 89 L Ed 2d 674 (1986) (stating the federal standard
for harmless error). In determining whether an error was harmless, we consider
the importance of the improperly admitted evidence in the state's case, whether
the evidence was cumulative, whether the evidence was corroborated by properly
admitted evidence, and the overall strength of the state's case. SeeState
v. Cook, 340 Or 530, 550, 135 P3d 260 (2006) (concluding that constitutional
error was harmless beyond a reasonable doubt based on those factors).

The defense theory was that defendant
was merely present while Yucca committed the assaults and attempted murder. Halpin's
properly admitted testimony established that defendant gave Yucca a pistol, drove
him to the apartments, was present during the assault and shooting, waited for
him afterward, and drove him home. Properly admitted testimony of the victim
and Gongora confirmed that defendant was present at the assault and shooting
and that he may have tried to "get involved" in some unspecific way.

In contrast, codefendant's improperly
admitted statements established that everyone in the vehicle besides Chacua went
to the apartments with the purpose of fighting, that Yucca showed everyone in
the vehicle the pistol, that Yucca asked defendant to accompany him back to the
apartments to fight the man he had found there, and that defendant did so. The
codefendant's statements were important to the state's case because they tended
to show that defendant's actions aided Yucca and that defendant acted with the intention
of aiding him. That is, the statements were central to the state's theory that
defendant was an accomplice to Yucca, and not just a bystander. Moreover, the
improperly admitted evidence was neither cumulative of, nor corroborated by,
other evidence. Codefendant's statements provided unique evidence at trial and
conflicted, at least in part, with defendant's own account of what he knew in
advance and what his intent was in transporting and accompanying Yucca.

In short, the state's case, without
codefendant's improperly admitted statements, was not strong. Defendant's
presence at the scene of the altercation and his provision of a pistol and
transportation to Yucca are evidence of aiding and abetting only if the state
can demonstrate that defendant acted with the intention of aiding in Yucca's
commission of the underlying crimes. Codefendant's statements supported the
state's theory that defendant intended to aid Yucca when defendant provided him
with a pistol, transportation, and backup during the altercation. Because
"mere presence" and "acquiescence alone" are not sufficient
to establish aiding and abetting, seeHolloway, 102 Or App at 557,
codefendant's testimony was critical to the state's case.

Although the jury could have concluded
from the properly admitted evidence that defendant aided Yucca, it is
reasonably possible that it also relied on--or relied instead on--codefendant's
erroneously admitted statements in reaching thatconclusion. See
State v. Graves, 224 Or App 157, 166, 197 P3d 74 (2008) (concluding that
error was not harmless where "testimonial statements admitted in violation
of [the] defendant's right of confrontation were not entirely cumulative and
instead added new, significant, and incriminating details to the state's
case-in-chief"). Thus, we cannot say that the trial court's error in
admitting codefendant's statements in violation of defendant's confrontation
right was "harmless beyond a reasonable doubt." Cf. Van Arsdall,
475 US at 681 (affirming conviction despite constitutional error because error
was harmless). Accordingly, we reverse and remand defendant's convictions for
attempted murder, second-degree assault, and third-degree assault.

Reversed and remanded.

1.Defendant also
asserts that the court erred in entering a judgment of conviction on the
attempted murder charge without a unanimous jury verdict and in imposing
Measure 11 sentences on the attempted murder and second-degree assault charges
because he was convicted of those crimes on an aiding and abetting theory.
Because we reverse and remand for a new trial on the confrontation issue, we do
not need to reach those assignments of error, which would afford the same or
lesser relief--a new trial and resentencing, respectively.

2.We address the
trial court's denial of defendant's MJOA because the relief for an erroneously
denied MJOA--entry of a judgment of acquittal--is more complete than the remedy
of remanding for a new trial. See, e.g., State v. Peterson,
183 Or App 571, 574, 53 P3d 455 (2002) ("[D]eciding the statutory claim
would not obviate the need to examine the constitutional claims, which offer
more complete relief.").

4.When the victim
was asked for clarification on how defendant or codefendant tried to "get
involved," the victim responded that he did not know "whether he was
trying to get in there to take the gun away, or to hit Jaime."

5.At trial, defendant relied heavily on the Supreme Court's
opinion in State v. Pine, 336 Or 194, 82 P3d 130 (2003), which he also
cites in his brief on appeal. At trial, Pine was the subject of
significant discussion with the court; defendant asserted that the case stands
for the proposition that, for a third-degree assault to occur, two or more
assailants must directly participate in causing the injury. Defendant does not
renew that contention on appeal.

6.We distinguish
defendant's role of providing backup for Yucca from "mere presence"
or "acquiescence alone," as described in Holloway, 102 Or App
at 557, because in this case, defendant's presence as backup actually
encouraged Yucca: Yucca had found the men that he wanted to fight, but he was
outnumbered, and rather than confront them alone, he returned to the vehicle
where his friends were waiting. It was only after defendant agreed to
accompany Yucca to fight the men that Yucca returned to the apartments and
punched and shot the victim.